from the the-bit-leagues dept

We've long discussed the explosion eSports has undergone over the past few years. From a largely overseas pastime, eSports has since grown leaps and bounds, with collegiate and professional programs sponsored by educational institutions and sports leagues. Buy in from major media properties in sports has occurred at the same time, including from ESPN. The trajectory of eSports has seemingly moved in only one direction: upwards.

But it was always going to be the case that this progress would eventually hit a wall. Those of us interested in the acceleration of eSports have been looking for symptoms of this wall, unsure of where it would come from. Now we have something of an answer, with a prime example of why eSports needs to undergo its next step in evolution, as demonstrated by the chaos that was Blizzard shuttering its Heroes of the Storm league.

For those of you not in the know, the Heroes of the Storm Global Championship was a massive thing, with hundreds of players, production crews, broadcasters, commentators, and streamers building the whole thing in to a true ecosystem. Started in 2015, the game continued to be developed to support the eSport league. Until a few days ago, when Blizzard unilaterally decided to kill it off.

Last night, Blizzard announced plans to scale down Heroes of the Storm, moving its developers to other games and putting an end to its Heroes of the Storm Global Championship (HGC) esports league. The news came as a shock to hundreds of Heroes of the Storm players and broadcasters, many of whom say they now find themselves out of income streams with no warning.

“We are troubled by the way the announcement was made; namely the impolitic choice to use social media to share such a message that effectively ended the careers of hundreds of players, content creators, casters, production crews overnight - and broke the hearts of countless fans,” wrote Darrie, the general manager of an esports team called Method, on Twitter this morning, echoing the thoughts of many other former Heroes of the Storm players and managers.

Pretty much all the public comments from those involved in the league read something like the above, though many are far angrier and harsher. And you can understand why. Blizzard never gave any indication that the league was in jeopardy and then decapitated it via a blog post. This would be akin to James Naismith disbanding the NBA by literally taking his ball and going home. Such a thing wasn't possible, of course, as the NBA grew as an organic third party league built off of the game Naismith created.

eSports needs to take this next evolutionary step itself. Game publishers can't hold the keys to livelihoods like this, if eSports are to continue to grow in size and popularity. That kind of single point of failure is going to curtail investment, both of the monied and interest varieties. So what could hold this next step back?

Copyright is the likely culprit. The idea of trying to create a third party league out of a video game property, with all of the licensing that would be required, sounds inherently like a full on nightmare. But it absolutely needs to happen. Otherwise, eSports, controlled and siloed by each individual publisher, may just have seen its zenith.

from the no-fun-for-you dept

You will hopefully recall a post we did several years ago dealing with Blizzard's decision to shut down a fan-run "vanilla" World of Warcraft server that stripped the game's expansions out and let players play the game as it was originally released in 2004. As is so often the case in these kinds of disputes, we can at once stipulate that Blizzard was within its right to do this while still calling out whether it was the best decision it could make on the matter. The simple fact is that there were other avenues down which the company could travel other than threatening the fan-server into oblivion, such as working out a cheap licensing arrangement to make it official. The whole situation became all the more odd when you consider that Blizzard itself does not offer a competing experience with the fan-server, essentially ignoring what is clearly a desire within the fanbase for that kind of experience that Blizzard could monetize if it wanted. Instead, the fan-server shut itself down under the threat of a trademark lawsuit and Blizzard went on its merry way ignoring these customer desires.

In recent years the project has captured the hearts of tens of thousands of die-hard WoW fans. At the time of writing, the most popular realm has more than 6,000 people playing from all over the world. Blizzard, however, is less excited.

The company has asked the developer platform GitHub to remove the code repository published by Light’s Hope. Blizzard’s notice targets several SQL databases stating that the layout and structure is nearly identical to the early WoW databases.

That, of course, is the entire point of the vanilla server. The very idea is to allow players to experience the roots of the massively popular online game. And it's quite popular, too, with thousands of players playing this vanilla experience. If nothing else, this again should represent free market research and the uncovering of an entirely new and potentially lucrative market for Blizzard. It would be one thing if these takedowns were going on while coupled with statements from the company about its own competing service. But that's not what's happening. The takedowns happen and Blizzard ignores the market demands.

To be clear, again, Blizzard can do this. But, no matter the game of pretend its PR reps try to play, it certainly doesn't have to do this. It could quite easily work something out with Light's Hope to make it official and either monetize it directly or at least recognize that these types of fan projects do nothing but drive more interest and dollars towards the original product.

In the end, Blizzard comes off as anti-consumer and against its own passionate fan base. That's not a good look.

from the intentional-walk dept

We recently discussed how Major League Baseball had asked for an extension with the USPTO so its legal staff could decide whether it wanted to oppose a trademark application for eSport organization Overwatch League's new logo. The request was more than a little head-scratching for a variety of reasons. As we pointed out in that post, the two logos aren't particularly similar and certainty don't appear to give ground to any confusion among the public about any affiliation between the leagues.

Different color schemes, different fonts, and clearly identified names of the league on each logo didn't give MLB much ammo for a trademark opposition. Add to that the plethora of sporting league logos done in a similar style that actually do use the same color scheme, yet don't face aggression from MLB, and it raises the eyebrow as to why MLB's lawyers wanted to even go so far as to ask for an extension over any of this.

Well, it seems that either MLB's lawyers are Techdirt readers or they simply came to their senses (I choose to believe it's the former), because the time to file an opposition has come and gone with no action taken on MLB's side.

Major League Baseball has decided not to oppose Blizzard Entertainment’s OverwatchLeague trademark filing, per law firm Morrison / Lee. As part of the OWL’s trademark review process via the Trademark Trial and Appeal Board, organizations have the opportunity to oppose trademarks—and earlier this month, the MLB was reportedly preparing a challenge, along with a request for a 90 day extension.

The deadline to file the challenge and extension, July 26, has now come and gone without issue. OWL’s trademark is presumably in place, and while it could still be challenged as a trademark infringement down the road, such a challenge is unlikely given the lack of current filing.

While MLB has been happy in the past to be the bully on trademark issues, it seems it decided even this one was too silly to take on. That doesn't feel like it deserves applause as much as brief sigh of relief at one less dumb trademark issue I'd have to write about.

from the you're-not-helping dept

Readers here likely have begun to associate the attempted twisting of copyright law to go after video game cheaters with Blizzard. After all, between its StarCraft and Overwatch properties, the gamemaker has made something of a name for itself by attempting to assert a combination of "you only bought a license" and "breaking the EULA creates a copyright violation" theories into a "we can sue you for hacking our games" legal sandwich. It's a terribly frustrating thing to watch Blizzard do, as it tries to pretzel copyright law in a way never intended, and typically to achieve little if any legal success by doing so.

Well, everyone knew that Blizzard wouldn't be pulling this act solo forever, and now we know who the next game company to take up this loser of a strategy will be: Riot Games. Yes, the maker of the popular League of Legends is asserting copyright violations to go after those who create and use cheats and hacks. The complaint specifically targets a cheat called "LeagueSharp," which apparently allows players to automate aspects of gameplay, including targeting other players and seeing game objects that should be hidden.

"Among other things, L# enables its users to abuse LoL by allowing them to, for example, see hidden information; 'automate' gameplay to perform in the game with enhanced or inhuman accuracy; and accumulate levels, experience, and items at a rate that is not possible for a normal human player."

While this sounds very similar to many of the cheats and hacks that Blizzard has complained about, part of the impetus for this legal action is the popularity surrounding League of Legends eSport tournaments. eSports is becoming quite a thing these days, with viewership numbers that are comparable to viewership of traditional athletic competitions. As we've said in the past, cheating in online multiplayer games is at best annoying and at worst truly disruptive to the gaming experience. The stakes only rise when we begin talking about the eSports world, with competitive professionals competing. One can see how analagous to steroids in sports hacks might be in the eSports world. Still, the theories Riot Games trots out to back its copyright claims are nearly identical to Blizzard's, and those claims don't become stronger just because eSports is a thing.

It won't help the makers of the hacks that they appear to have acted in ways that will put them in a negative light.

"Defendants or those working in concert with them disseminated personal and non-public information about a Riot employee, threatened that employee, and posted offensive comments on the employee’s social media. Additionally, knowing that this lawsuit was imminent, Defendants have been quickly and carefully destroying or concealing evidence such as their most incriminating online posts and purporting to hide behind a Peruvian shell corporation created solely for the purpose of evading liability."

Which may indeed make them assholes, but it does not make them guilty of copyright infringement. The claims by Riot Games still come down to the claim that a violation of a Terms of Use agreement renders a license for the game invalid, meaning copyright infringement, along with a claim that creating a hack for a video game violates the anti-circumvention clause of the DMCA. For that last claim to work, Riot Games would need to demonstrate that these specific cheats are lessening the value of the game in general.

Given the insane success that is League of Legends, that might be a tough claim to make. Regardless, this isn't how copyright was meant to be used and stretching it in this way serves nobody at all.

from the derp dept

We've dinged Blizzard quite a bit in these pages for acting overly protectionist of its intellectual property in the past. And that dinging has been well deserved, with Blizzard doing things like trying to twist copyright law as a way to combat cheat software within its multiplayer games, to use intellectual property as an excuse to shut down a World of Warcraft vanilla fan-server, and has otherwise not always acted in human or awesome ways towards its own fans.

But sometimes, with much kicking and screaming and the insistence of making many a mistake along the way, even a company like Blizzard can manage to do what game companies like DoubleFine have already done: loosen the leash on its own IP and reap the rewards. StarCraft Universe is a fan-made mod that consists of a full new game in a genre that Blizzard had never taken the StarCraft universe into.

StarCraft Universe takes place in an alternate timeline where Kerrigan got torn chitinous dreadlock-from-weird spider spine at the end of StarCraft II: Wings of Liberty. After that, it didn’t take long for the Hybrids to bring down the Protoss as well. It’s up to a few remaining survivors to, you know, not die.

“We wanted to combine the third person action RPG elements of World of WarCraft, the combat mechanics of Diablo, and the starship mechanics ofFTL with the StarCraft setting,” Upheaval wrote. “We wanted the game to be completely voice acted with a unique story, custom art assets, and a fresh musical score.”

You can see the trailer for the game here and you'll see that it looks pretty slick for a fan-made construction. Fully voiced characters and an original score, combined with gameplay elements familiar to fans of World of Warcraft and FTL. Using the StarCraft IP and some homebrew elements, this is a whole new world and a whole new experience for StarCraft fans, who are amongst the most passionate.

And if any of this feels familiar to you, it's because the project had originally begun in 2011 before Blizzard smacked it down.

Just a reminder: this is the mod that got announced in 2011 as World of StarCraft, ran afoul of Blizzard’s lawyers, caused hella controversy,relaunched with a new name, got Blizzard’s approval, and went on Kickstarter to ultimately rake in $84,918.

Rather than simply whipping out the intellectual property hammer and dealing a deathblow, Blizzard ended up communicating with the Upheaval team and allowing it to eventually move forward. It even allowed the group to run a Kickstarter campaign for it, along with an ongoing IndieGoGo page where gamers can donate to the developers of what is an otherwise free-to-play game.

The result? Well, loads of comments on all kinds of articles can be generally summed up as saying, "This looks cool! I have to go buy StarCraft 2!" Which is what should have been allowed to happen five years ago, if Blizzard had had the foresight to leash its lawyers instead of its fans. But better late than never, as they say, and Blizzard is fully on board with this now, with SC Universe appearing in the StarCraft Arcade store. Good will, more paying customers, and an expanded game universe, all for the cost of not being overly protectionist of intellectual property. Lesson learned, Blizzard?

from the sigh dept

For some reason, gamemaker Blizzard has been totally smitten with the idea of twisting copyright law into an ugly pretzel to sue anyone who makes a hack or cheat for one of its games for some time now. They did this concerning Starcraft, then World of Warcraft, and then Starcraft 2. This lawsuit tactic is starting to become something of a right of passage for Blizzard's games, but the tactic in question makes little sense. Blizzard's argument can be roughly translated as: cheats and hacks break the EULA for the game, the game is licensed by the EULA instead of being owned by anyone paying for it, the game does regular copying of code and files while in use, therefore a hack or cheat that breaks the EULA renders all of that routine copying as copyright infringement. While this wrenching of copyright into these kinds of lawsuits has nothing to do with the actual purpose or general application of copyright law, many cheer these moves on, because cheaters within the communal games we play are annoying.

But the ends don't justify the means, and this kind of twisting of copyright law is dangerous, as we've pointed out in the past. Not that that's stopped Blizzard from utilizing this tactic, of course. In fact, recent Blizzard success Overwatch has become the latest to achieve this right of passage.

While most Overwatch players stick to the rules, there’s also a small group that tries to game the system. By using cheats such as the Watchover Tyrant, they play with an advantage over regular users. Blizzard is not happy with the Overwatch cheat and has filed a lawsuit against the German maker, Bossland GMBH, at a federal court in California. Bossland also sellscheats for various other titles such as World of Warcraft, Diablo 3 and Heroes of the Storm, which are mentioned in the complaint as well.

The game developer accuses the cheat maker of various forms of copyright infringement, unfair competition, and violating the DMCA’s anti-circumvention provision. According to Blizzard these bots and cheats also cause millions of dollars in lost sales, as they ruin the games for many legitimate players.

And it might indeed be true that these cheat hacks piss off some Overwatch gamers and might even drive some of them away from the game, costing Blizzard revenue. But, and I cannot stress this enough, that doesn't suddenly make any of this copyright infringement. To see what lengths Blizzard's legal team is going to in order to twist this all together, one need look only at the claims the filing makes.

First, it claims that Bossland is committing contributory infringement by offering the hack, because the hack breaks the EULA, which makes accessing the game suddenly fraudulent, and all the routine copying the game does becomes copyright infringement. This, again, relies on the idea that the game is licensed rather than bought, and that breaking the EULA renders the license invalid. This has never been the way copyright has worked in the past.

Second, the filing claims that the hack's ability to provide a graphical overlay over the regular game is the creation of a derivative work, which is also copyright infringement. Except the overlay isn't copying any part of the game, nor is it making works expanding on the game. It's just an overlay, or a HUD.

Only then does the filing accuse Bossland of contractual interference, which is probably the most sound charge in the whole thing. Even then, hacks and cheats have long been a staple of the video game ecosystem, with most gamemakers embracing modding communities, and even embedding cheats within their own games. This has changed somewhat with the rise of online multiplayer games, where these kinds of cheats break the game in some ways, but still, entering into a legal challenge over all of this instead of jumping back into the fray of game development to try to keep the cheaters out seems strange.

And filing all of this in a California court has pretty much everyone, including the folks at Bossland, scratching their heads.

TF spoke with Bossland CEO Zwetan Letschew, who informed us that his company hasn’t received the complaint at its office yet. However, they are no stranger to Blizzard’s legal actions.

“There are over 10 ongoing legal battles in Germany already,” Letschew says, noting that it’s strange that Blizzard decided to take action in the US after all these years. “Now Blizzard wants to try it in the US too. One could ask himself, why now and not back in 2011. Why did Rod Rigole [Blizzard Deputy General Counsel] even bother to fly to Munich and drive with two other lawyers 380 km to Zwickau. Why not just sue us in the US five years ago?”

While Letschew still isn’t convinced that the lawsuit is even real, he doesn’t fear any legal action in the U.S. According to the CEO, a California court has no jurisdiction over his company, as it has no ties with the United States.

It should be noted that much of the time these legal attempts by Blizzard don't result in wins for its legal team. And that's not even taking into account the questions of jurisdiction and/or what a California court ruling will result in for a company abroad. I'm a little lost as to why Blizzard is even bothering with this, to be honest.

from the stop-lying dept

Blizzard, maker of World of Warcraft, has a long and dubious history when it comes to trying to twist intellectual property laws and requirements to be whatever they want it to be at the time. These instances have mostly revolved around using copyright in an attempt to stop people who use cheat-bots to play the company's games, as well as those who make the bots. The actual tactics Blizzard uses in those cases, which chiefly revolve around twisting copyright into knots as never intended, can get lost because of the hatred most players have for those who game the gaming system.

But it's a different story when it comes to Nostalrius, which was the name for fan-servers offering up a "vanilla" version of World of Warcraft to gamers who wanted to play the game without any of the expansion packs that Blizzard has released. Serving thousands of individual gamers, Blizzard decided the fan-server was a threat to its business and used trademark law to threaten those running it into shutting the whole thing down. Smart or not, Blizzard was within its rights to do this. Its explanation as to why, however, is absolutely dripping with bullshit and needs to be called out.

We'll start with the now common refrain the company offered as to why it shut down the server, responding to public backlash for having done so.

Why not just let Nostalrius continue the way it was? The honest answer is, failure to protect against intellectual property infringement would damage Blizzard’s rights. This applies to anything that uses WoW’s IP, including unofficial servers. And while we’ve looked into the possibility – there is not a clear legal path to protect Blizzard’s IP and grant an operating license to a pirate server.

It's difficult to see how this could possibly be true. Policing the trademark is indeed a requirement within trademark laws generally, but policing doesn't offer a dichotomy between choosing to give up the mark or shutting the fan server down. There are other avenues that could have been explored, such as granting an inexpensive license to Nostalrius, which would allow them to continue as an official arm of Blizzard's IP. That satisfies the requirement and doesn't result in pissing off thousands of Blizzard fans. Keep in mind that Blizzard itself does not offer a similar vanilla version of WoW such as this. Working with the folks behind Nostalrius, it could have claimed to have done so through a third party. Problem solved. Why is it that those that use intellectual property so heavily, assets which are often designed to spur creativity, are the least creative when it comes to how to enforce that intellectual property?

As for why Blizzard doesn't just offer up a similar service for gamers? Well:

We explored options for developing classic servers and none could be executed without great difficulty. If we could push a button and all of this would be created, we would. However, there are tremendous operational challenges to integrating classic servers, not to mention the ongoing support of multiple live versions for every aspect of WoW.

So, Blizzard, a rather large company, couldn't figure out how to accomplish what a single fan server did? Please. And even if that were indeed true, why again not simply utilize what Nostalrius had already built and license it so that it was kosher? Why instead bring the legal hammer down and force the whole thing into shutdowns-ville?

Blizzard says they're in talks with the folks behind the fan server now that it's been shut down, but there was no reason to shut it down in the first place, aside from the misguided belief that pissing of your fans will get them to give you more money.

from the that's-NOT-copyright-infringement dept

We've been here before a few times. Back in 2008, video game giant Blizzard initially won a very dangerous ruling against a World of Warcraft bot maker, saying that if (as most software companies do) the End User License Agreement (EULA) says that you've only licensed the product, rather than bought it, then any violation of the EULA can be a violation of copyright law. Copyright expert William Patry, at the time, pointed out how insane such a ruling was:

The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

Thankfully, the Ninth Circuit mostly walked back this ruling (though with a bunch of other problems...), noting (as Patry did in discussing the earlier ruling) that nothing was done that actually violated copyright law. It might violate a contract, but not copyright. This ruling, however, has not stopped Blizzard from continuing to go after bot makers with copyright claims. It went after some Starcraft II cheat creators in 2010. And just last year it went after a few more Starcraft II cheat creators, using the same twisted copyright theory.

And now, as TorrentFreak first pointed out, it's done so yet again -- this time filing a lawsuit against James Enright, who had built up a series of gaming bots for use in World of Warcraft, Diablo and Heroes. And, once again, Blizzard claims that it's a copyright violation, again arguing that violating the EULA is a form of copyright infringement.

Defendants have infringed, and are continuing to infringe, Blizzard’s
copyrights by reproducing, adapting, distributing, and/or authorizing others to
reproduce, adapt, and distribute copyrighted elements of the Blizzard Games
without authorization, in violation of the Copyright Act

More specifically, Blizzard is trying to make this a copyright claim by saying that he violated the EULA by reverse engineering their games to make his bots work. But that's not copyright infringement. It further claims that he's engaged in "tortious interference" because he's convincing other players to break their EULA's with his bots.

Now -- as in past such stories -- it's quite clear that many people are not happy about the use of cheats and bots in these games. It may be absolutely 100% true that they diminish the gaming experience for others and present a real problem for Blizzard. In all likelihood, they probably do violate the EULA that Blizzard uses on those games that forbids such activities.

But that shouldn't make it a copyright violation.

Blizzard can go after them for breach of contract. Or it can cut them off from its service. Or it can change how its games work to try to prevent bots. But that doesn't mean it gets to twist copyright law to use it against something that has absolutely nothing to do with copyright. This seems like yet another case of copyright immigration, where copyright law is used to go after "some bad thing" because it's such a powerful law with such powerful remedies. Blizzard has been doing this for nearly a decade now, and it's high time a court told them to knock it off.

from the three-strikes dept

YouTube's ContentID system gets mocked quite frequently for bogus takedowns, which happen with unfortunate frequency. The latest, as pointed out by YouTube star Total Biscuit is that Blizzard's own damn YouTube channel for World Championship Series StarCraft, WCSStarCraft, was down for at least 40 minutes earlier today. If you visited the page during that time, you saw the following:

A YouTuber who follows Totalbiscuit, Ryan Wyatt, quickly noted that the company was "working on it", but it still looks bad -- and again raises questions about why YouTube has given in to pressures from copyright holders to do excessive things like shutting down accounts based on accusations and matches, all too often leading to these kinds of results. Yes, the DMCA requires a process for removing accounts of repeat infringers, but that should require them to be actual infringers.

from the paved-with-good-intentions dept

The road to Hell, as they say, is paved with good intentions. The lesson in that axiom is that one should always be wary of the potentially adverse consequences of actions intended to be good. Blizzard, unfortunately, appears to be something of a performance art piece on this concept. For many years now it has, under the auspices of protecting the larger portion of its customers' gaming experience, gone after hackers and cheaters in its games by twisting copyright law into a tortured pretzel. It began with Starcraft and then transitioned into World of Warcraft, both relying on a morose entwining of copyright law and terms of service. That combination essentially creates a cascade of faulty nonsense, starting with the concept that software is only licensed and not sold to customers, that ToS agreements are so binding that breaking them breaks the license, and finally that breaking the license negates the ability for fleeting copying that the software employs, creating a copyright infringement. If your head is spinning, you aren't alone.

Blizzard filed papers in a California court on May 19th alleging that an unidentified group of programmers infringed on the publisher's StarCraft II copyright with a series of cheats and in-game exploits collectively known as the "ValiantChaos MapHack." Designed to give StarCraft II players any number of competitive advantages when playing the game online, the MapHack was made available online through the ValiantChaos forum—provided that forum members paid $62.50 for access to its VIP section. The complaint Blizzard filed says that the company is taking action against the programmers in order to "protect the sanctity of the StarCraft II experience" against "hacks, mods or any other unauthorized third-party software" that undermines the competition central to the game's online multiplayer.

It would be quite easy for any Starcraft 2 player to cheer Blizzard on at this point. I don't play this particular game, but I've wished all manner of ill in the past on those that were obviously using cheats and hacks in online games in the past. Counter Strike, in particular, did more to teach me how much I hate cheaters than any other single experience in my entire life. That said, we still have the same problems as before.

Blizzard's filing again lays out its view that its software is licensed, rather than sold in the traditional meaning -- and that a violation of its ToS and EULA agreements nullifies that license. In addition, it claims both that the hacks created by the hackers (even if their copies were purchased legitimately) constituted a modified end-product, or illegal derivative work, and that this resulted in both direct and contributory infringement in the instance of every copy of the hack they provided, used or sold. It also, of course, argues that anti-circumvention clauses of the DMCA apply.

The problem with all of this is that it still relies on the twisted assumptions that Blizzard customers don't actually own what they bought and that ToS and EULA agreements are so binding that violation of them negates the license that the company insists was all that was purchased. As I mentioned, this may be done in a valiant effort to keep most of its customers as happy as possible, but that doesn't make it right. The wider implications of these rulings is horrifying. There simply will be unintended consequences in this that will prove to be far more harmful than any annoying game-hackers can create with their irritating products.

This may seem crappy, but the best course for everyone involved would be for Blizzard to simply jump back into the arms race with these cheaters and hackers and try its best to keep them off the company's servers. Going the legal nuclear option and twisting copyright into the mix may only amplify the amount of harm being done all around.